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2022 DIGILAW 181 (UTT)

Shakib alias Monish v. State of Uttarakhand

2022-07-04

S.K.MISHRA

body2022
ORDER : Sanjaya Kumar Mishra, J. 1. Heard Mr. S.K. Mandal, learned counsel for the writ applicant as well as Mr. J.S. Virk, learned Deputy Advocate General for the State. 2. By virtue of this writ application, the petitioner has prayed the following prayers: “(i) Issue a writ, order or direction in the nature of certiorari quashing the FIR No. 114/2022 dated 30.03.2022 punishable under Section 5/6 of the Protection of Children From Sexual Offences Act, 2012, as well as Section 376(2) (n) read with Section 376 (3) of the Indian Penal Code, was registered at PS Ram Nagar, District Nainital (Annexure No. 1 to the writ petition). (ii) Issue a writ, order or directions in the nature of mandamus directing the respondent no.2 not to arrest the petitioners or take any coercive measures agisnt the petitioner, pursuant to FIR No. 114/2022 dated 30.03.2022 punishable under Section 5/6 of the Protection of Children From Sexual Offences Act, 2012, as well as Section 376 (2) (n) read with Section 376 (3) of the Indian Penal Code, was registered at PS Ram Nagar, District Nainital (Annexure No.1 to the writ petition) during pendency of the instant writ petition.” 3. A compounding application has been filed by the petitioner as well as respondent no.3 (victim). Both are present in the Court. However, this Court takes note of the fact that an application for compounding of an offence is different from an application for quashing of the FIR on the basis of a compromise. An offence can be compounded under Section 320 of the Code of Criminal Procedure, 1973, only if case comes within the four corners of the aforesaid provision. However, under Section 482 of the same code the High Court have ample jurisdiction on the compromise arrived at between the parties to quash the FIR or set aside the order of cognizance. 4. In this case, the petitioner has prayed to quash the FIR No. 114 of 2022 dated 30.03.2022, for the offences punishable under Section 376 (2) (n), Section 376 (3) IPC read with Section 5/6 of the Protection of Children from the Sexual Offences Act, 2012 on the ground of compromise. 4. In this case, the petitioner has prayed to quash the FIR No. 114 of 2022 dated 30.03.2022, for the offences punishable under Section 376 (2) (n), Section 376 (3) IPC read with Section 5/6 of the Protection of Children from the Sexual Offences Act, 2012 on the ground of compromise. In the reported case of Gian Singh vs. State of Punjab and another, reported in (2012) 10 Supreme Court Cases 303, the Hon’ble Supreme Court has taken into consideration the powers of the Court and made certain observations regarding the heinous and serious crimes, like that of the rape. It is appropriate to take the exact words used by the Hon’ble Supreme Court in the aforesaid case at paragraph 61. It appears that the FIR cannot be quashed. In what cases power to quash the criminal proceedings or complaint or F.I.R may be exercised where the offender and victim have settled their disputes would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must take due care in examining the nature and gravity of the crime. For ready reference para 61 of the Gian Singh (supra) judgement is being quoted herein below. “The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz; (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim’s family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.” 5. Thus, it is apparent from the record that the petitioner is seeking for quashing of an FIR for the offence of alleged rape of a child. He would further argue that there is no proper proof of her age in the charge-sheet. Thus, it is apparent from the record that the petitioner is seeking for quashing of an FIR for the offence of alleged rape of a child. He would further argue that there is no proper proof of her age in the charge-sheet. Learned counsel for the writ applicant would rely upon a nonreportable case i.e. Vineet Kumar @ Jitendra Kumar vs. State of Uttarakhand & another, decided on 17th September, 2019, wherein application was allowed by the learned Coordinate Bench after taking into considerations the observations made by the Hon’ble Supreme Court in the Gian Singh’s case (supra). However, we do not find any mention of any observation given by the Hon’ble Supreme Court to the High Courts in given cases. So the order passed by the learned Coordinate Bench is definitely not applicable in this case. 6. Learned counsel for the applicant would also relied upon a judgement rendered by Hon’ble Allahabad High Court in Jitendra vs. State of U.P. and another, reported in 2021 SCC Online All 226, wherein the Hon’ble Allahabad High Court of Uttar Pradesh at Allahabad has also allowed the compounding application and quashed the proceedings punishable under Section 354 IPC read with Sections 7/8 of the POCSO Act. However, taking into consideration the aforesaid 2 judgments, this Court is of the opinion that the learned Single Judge as well as the Hon’ble High Court at Allahabad have not applied the judgement of the Hon’ble Apex Court, in its proper prospective, especially its observations regarding the heinous cases like murder, rape etc. The Hon’ble Supreme Court has clearly held that the High Courts should give due regard to the nature and gravity of the crime and heinous and serious crime like rape and murder. It cannot be fitting to quash even though the victim or victim’s family have and the offender have settled the dispute. 7. This specific a direction of the Hon’ble Supreme Court has not been followed in either of the precedents cited before us. Hence, we are not inclined to follow the citations before us. We come to the conclusion that this is not a fit case where an offence of rape of an child should be quashed on the basis of a compromise arrived at between the parties. Moreover, in the case the charge-sheet has been submitted. Hence, we are not inclined to follow the citations before us. We come to the conclusion that this is not a fit case where an offence of rape of an child should be quashed on the basis of a compromise arrived at between the parties. Moreover, in the case the charge-sheet has been submitted. In that view of the matter a writ petition under Article 226 of the Constitution is not maintainable. This is an additional ground. After advancing his arguments, learned counsel for the petitioner submits that the petitioner wants to withdraw the writ application. 8. As we have decided the writ application on merit, the submission for withdrawal the writ application is of no consequence. The writ application is of no merit and is dismissed being devoid of merit. 9. Urgent certified copy of this order be granted on proper application.